NO. 98003-9

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

IN RE DEPENDENCY OF Z.J.G., AND M.G., MINORS

WASHINGTON STATE DEPARTMENT OF CHILDREN, YOUTH

AND FAMILIES

Respondent,

v.

SCOTT JAMES GREER

Appellant.

ON APPEAL FROM THE SUPERIOR COURT OF THE STATE OF

WASHINGTON FOR KING COUNTY

The Honorable Patrick Oishi, Judge

SUPPLEMENTAL AMICUS BRIEF ON BEHALF THE CHILDREN’S

TRIBES:

THE CENTRAL COUNCIL OF TLINGIT AND HAIDA INDIAN

TRIBES OF ALASKA AND KLAWOCK COOPERATIVE ASS’N

Ronald J. Whitener, WSBA # 24072

Center of Indigenous Research and Justice

5033 Harrison Avenue NW

Olympia, Washington 98502

(425) 242-5888

Kathryn E. Fort, MI P69451

Admitted pro hac vice

FILED SUPREME COURT

STATE OF WASHINGTON 512812020 2:40 PM

BY SUSAN L. CARLSON CLERK

ii

Michigan State University College of Law Indian Law Clinic

648 N. Shaw Lane, Ste. 215K

East Lansing, Michigan 48824

(517) 432-6992

Madeline Soboleff Levy, AK 1505018

Admitted pro hac vice

Central Council of Tlingit and Haida Indian Tribes of Alaska

9097 Glacier Highway

Juneau, AK 99801

Attorneys for Amicus

iii

TABLE OF CONTENTS

Table of Authorities ................................................................................... iv

Interest of Amicus ..................................................................................... vii

Statement of the Case.................................................................................. 1

Argument .................................................................................................... 3

I. Tribal Governments, Not State Employees or Parents, Are the Only

Source that Can Provide State Courts with Definitive Information

Regarding a Child’s Status as an Indian Child ....................................... 3

II. The Lower Court Decision Resolving Doubts About Tribal

Citizenship Against Tribes Thwarts the Purpose of ICWA and WICWA

and Clashes with the Holdings of Cases in a Majority of Sister States. . 7

A. WICWA’s Requirements Match the Sister States’ Holdings

Requiring a Low Evidentiary Bar for Noticing Tribes and are Not

Superseded by the Passage of the Federal Regulations ...................... 7

B. The 2016 ICWA Regulations do not Change the Requirements or

the Language of ICWA’s “Reason to Know” Standard.................... 10

C. Sister States Have a Low Evidentiary Burden to Trigger the

“Reason to Know” Standard Both Before and After the Regulations

were Issued........................................................................................ 15

Conclusion ................................................................................................ 20

iv

TABLE OF AUTHORITIES

Case Law

Mississippi Band of Choctaw Indians v. Holyfield

490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) .....................4, 15

Santa Clara Pueblo v. Martinez

436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) .............................3

Williams v. Gover

490 F.3d 785 (9th Cir. 2007) ................................................................3

In re T.A.W.

186 Wn.2d 828 (2016) ..........................................................................8

In re A.L.C.

8 Wn.App.2d 864 ................................................................................11

In re Dependency of Colnar

52 Wn.App. 37(1988) .........................................................................13

B.H. v. People ex rel. X.H.

138 P.3d 299 (Colo. 2006) ..................................................................17

In re Morris

815 N.W.2d 62 (Mich. 2012) ........................................................11, 16

Matter of L.A.G

429 P.3d 628 (Mont. 2018) .................................................................17

Matter of B.Y.

432 P.3d 129 (Mont. 2018) .................................................................17

Adoptive Couple v. Baby Girl

731 S.E.2d 550 (S.C. 2012) ................................................................14

In re M.C.P.

571 A.2d 627, 634 (Vt. 1989) .........................................................3, 16

T.W. v. Shelby Cty. Dep't of Human Res.

No. 2180005, 2019 WL 1970066 (Ala. Civ. App. May 3, 2019) .......18

Michelle M. v. Dept’ of Child Safety

401 P.3d 1013 (Ariz. Ct. App. 2017) ..................................................16

In re B.R.

97 Cal.Rptr.3d 890 (Cal. Ct. App. 2009) ............................................16

In re Austin J.

261 Cal.Rptr.3d 297 ............................................................................16

G.L. v. Dep’t of Children and Families

80 So.3d 1065 (Fla. Dist. Ct. App. 2012) ...........................................16

v

State ex rel. Children, Youth & Families Dep’t v. Tanisha G.

451 P.3d 86 (N.M. Ct. App. 2019) .....................................................17

Matter of J.W.E.

419 P.3d 374 (Okla. Civ. App. 2018) ...............................16, 17, 18, 19

Interest of M.R.

__S.W.3d__, 2020 WL 500783 (Tex. Ct. App. 2020)........................18

Geouge v. Traylor

808 S.E.2d 541 (Va. Ct. App. 2017) .............................................17, 18

Federal Statutes

25 U.S.C. §§1901 et. seq. (1978) .............................................................. vii

§ 1901.....................................................................................................4

§ 1903.......................................................................................................3, 9

§ 1912...............................................................................................5, 10, 15

§ 1914.........................................................................................................11

§ 1920.........................................................................................................11

§ 1921...........................................................................................................9

§ 1922...................................................................................................11, 19

Pub. L. No. 103-454, 108 Stat. 4791 ........................................................ vii

State Statutes

RCW §§ 13.38.010-13.38.190 ............................................................. vii, 7

13.38.040......................................................................................................9

13.38.050..................................................................................................3, 4

13.38.070..................................................................................1, 4, 5, 7, 8, 9

Administrative Authority

25 C.F.R. pt. 23 (2016) ........................................................................11, 16

§ 23.106........................................................................................................9

§ 23.107..........................................................................1, 2, 4, 5, 10, 12, 13

81 Fed. Reg. 38779 (June 14, 2016) ....................................................11, 16

81 Fed. Reg. 38803 (June 14, 2016) ....................................................11, 12

Bureau of Indian Affairs Guidelines for Implementing the Indian Child

Welfare Act (2016) ....................................................................................13

Indian Child Custody Proceedings. 44 Fed. Reg. 67584 (Nov. 26, 1979).12

Legislative Authority

vi

H.R. Rep. No. 95-1386 (1978) ...................................................................15

Additional Authorities

David S. Case & David A. Voluck, Alaska Natives and American Laws

(3d ed. 2012) ............................................................................................. vii

Eddie Hunsinger & Eric Sandberg, The Alaska Native Population, Alaska

Economic Trends, Apr. 2013 ................................................................... viii

Nell Newton, ed. Cohen’s Handbook of Federal Indian Law (2012) ..........3

Wash. St. Racial Disproportionality Advisory Comm. Racial

Disproportionality in Washington State Report to the Legislature (2010) ..8

vii

INTEREST OF AMICUS

The Central Council of Tlingit and Haida Indian Tribes of Alaska

(“Tlingit & Haida”) is a federally-recognized tribal nation of more than

31,000 citizens headquartered in Juneau, Alaska. Tlingit & Haida is a

regional tribe, with eighteen constituent community councils located

throughout Southeast Alaska, including Klawock, a Tlingit village.1

Klawock Cooperative Association (KCA) is a federally-recognized tribal

nation on Prince of Wales Island that compacts with Tlingit & Haida for

services, including Indian Child Welfare Act advocacy. The minor

children involved in this case are KCA tribal citizens, and KCA is the

“Indian child’s tribe” under the Indian Child Welfare Act (ICWA), 25

U.S.C. §§ 1901 et. seq. and the Washington Indian Child Welfare Act

(WICWA), RCW §§ 13.38.010 et. seq. Tlingit & Haida intervened in the

trial court proceedings on behalf of KCA. However, because it received no

notice of the original appeal and could not participate as a party, it has

been advised to file as amicus at this stage.

1 Tlingit & Haida was originally formed to represent the indigenous people that have

lived in Southeast Alaska since time immemorial to respond to the United States taking

land for two national parks with no compensation to the tribes. David S. Case & David A.

Voluck, Alaska Natives and American Laws 335 (3d ed. 2012). In 1994, Congress

reaffirmed the federal recognition of Tlingit & Haida in the Tlingit and Haida Status

Clarification Act, Pub. L. No. 103-454, 108 Stat. 4791 (Nov. 2, 1994) codified at 25

U.S.C. §§ 1212, 1213 (2006).

viii

Over the past half century, Washington has become a major hub

for economically-displaced Tlingit people, driven by assimilationist

boarding school policies, the disparate effects of Alaska’s resource

economy, and diminishment of subsistence harvests. Tlingit & Haida

citizens live all over the world, though as of 2010, twenty-two percent of

U.S. residents with Tlingit, Haida, or Tsimshian ancestry lived in

Washington. Eddie Hunsinger & Eric Sandberg, The Alaska Native

Population, Alaska Economic Trends, Apr. 2013, at 9,

https://labor.state.ak.us/trends/apr13.pdf.

Tlingit & Haida and KCA have a direct interest in the outcome of

these proceedings, both for the children involved here and all of their

children in Washington state, where the largest number of Tlingit & Haida

children reside outside of Alaska.

1

STATEMENT OF THE CASE

After the police removed the minor children in this case from their

parents, the state filed a sworn child welfare petition identifying the

children as “Indian children,” and identifying the case as one covered by

the federal and state Indian Child Welfare Acts. Dependency Pet. (DPP) at

2. The Petition lists as supporting information:

Mother has Tlingit-Haida heritage and is eligible for membership

with Klawock Cooperative Association. She is also identified as

having Cherokee heritage on her paternal side. Father states he

may have native heritage with Confederate Tribes of the Umatilla

in Oregon.

Id.

Nonetheless, the trial court determined that there was no “reason to

know” the children were “Indian children” because of unverified

statements from the state social worker and parents about tribal

enrollment. The court did not wait to hear from the named tribes

themselves - the only parties with legal authority to determine citizenship -

as to the children’s tribal status.

The level of specificity in the parties’ testimony regarding the

children’s ties to identified tribal communities, per 25 C.F.R. 23.107 (c)(2)

and RCW 13.38.070(1), provided the lower court with enough evidence

for the court to have “reason to know” there “may be” Indian children

involved in the case, and to treat the children as Indian children until the

2

tribes themselves could confirm or deny the children’s tribal citizenship.

25 C.F.R. 23.107(b)(2). Without the court finding that there was reason to

know the children were or may be Indian children, there was no

requirement the Tribes receive formal, legally required notice or that the

family receive ICWA and WICWA protections. The lower court holding,

which errs on the side of lower protection standards, will lead to disparate

treatment of Indian children depending on the state in which they reside, is

contrary to the goals of both ICWA and WICWA, and is an unnecessarily

narrow reading of the ICWA Regulations. Therefore, the Tribe

respectfully asks the Court to reverse the Court of Appeals decision to

ensure tribal children and families receive ICWA’s and WICWA’s

protections at the earliest possible hearing.

3

ARGUMENT

I. TRIBAL GOVERNMENTS, NOT STATE EMPLOYEES OR PARENTS,

ARE THE ONLY SOURCE THAT CAN PROVIDE STATE COURTS WITH

DEFINITIVE INFORMATION REGARDING A CHILD’S STATUS AS AN INDIAN

CHILD

Indian tribes possess the sole discretion to determine who is a

member or eligible for membership in their tribe. As noted in the leading

treatise on federal Indian law, “[e]ach tribe, as a distinct political

community, has the power to determine its own tribal membership.” Nell

Newton, ed. Cohen’s Handbook of Federal Indian Law, 214 (2012). In

fact, a tribe's right to define its own citizenship “has long been recognized

as central to its existence as an independent political community.” Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 72, n. 36, 98 S.Ct. 1670, 56

L.Ed.2d 106 (1978); Williams v. Gover, 490 F.3d 785, 789 (9th Cir. 2007)

(“An Indian tribe has the power to define membership as it chooses,

subject to the plenary power of Congress.”); see also RCW 13.38.050.

This means that in any case involving a determination of whether a child

is an “Indian child,” 25 U.S.C. 1903(4), under the Indian Child Welfare

Act (ICWA), tribal governments have the last word. See In re M.C.P., 571

A.2d 627, 634 (Vt. 1989).

More than any other party, the Tribe has the most compelling

interest in properly identifying children who are or may be tribal citizens.

4

Though parents receive heightened protections in child welfare

proceedings under ICWA and the Washington Indian Child Welfare Act

(WICWA), parents may not want tribal professionals involved in their

lives, they may not understand their own tribal connections, or even agree

with family placement preferences. However, the United States Supreme

Court’s landmark decision on ICWA in Holyfield squarely holds that an

individual parent cannot override ICWA because the wellbeing of both

tribal children and nations hinges on its application. Mississippi Band of

Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d

29 (1989). The provisions of ICWA were “not meant to be defeated by the

actions of individual members of the tribe, for Congress was concerned

not solely about the interests of Indian children and families, but also

about the impact on the tribes themselves of the large numbers of Indian

children adopted by non-Indians.” Id. at 49, citing 25 U.S.C. §§ 1901(3).

In order to effectuate tribal confirmation of membership, both the

ICWA regulations and WICWA require the petitioner seeking foster care

placement or termination of parental rights to inquire and contact any tribe

where the child might be a member or is eligible for membership. 25

C.F.R. §23.107(a), RCW 13.38.050. This inquiry and good faith effort is

not a substitute for the formal notice that is required when “the petitioning

party or court knows, or has reason to know, that the child is or may be an

5

Indian child.” (emphasis added) RCW 13.38.070, cf. 25 U.S.C. 1912

(a)(“…or has reason to know that the child is an Indian child”). Only the

written tribal determination or tribal testimony that a child is a member or

is eligible for membership is conclusive that the child is an Indian child.

RCW 13.38.070(3)(a). There is no requirement in RCW 13.38.070(3)(a)

that the parent be a member for the tribal determination of membership,

which makes sense, given the tribe is the sole arbiter of membership.

In this case, the trial court based its “reason to know”

determination on the testimony of a state social worker and two parents

regarding their own enrollment. The state social worker relayed a hearsay

conversation with an unknown tribal employee, with an unknown title, and

an unknown source of information, that the children’s grandmother was

enrolled with Tlingit & Haida but the mother and children were not.

Report of Proceedings (RP) at 11. No tribal representative was present to

testify, and the state presented no written determination from any tribal

representative. While this may certainly be difficult to achieve at a shelter

care hearing, the purpose of the “reason to know” provision is to ensure

children are considered Indian children during the pendency of time it

takes to issue formal notice. 25 C.F.R. 23.107(b)(2).

Child welfare proceedings are often difficult and complicated, with

parents who may have serious deficits. They may, or may not, have the

6

ability or information to testify as to their own tribal enrollment status. For

example, the mother in this case was an abused and neglected child

herself, with CPS history and a self-report that she left home at the age of

twelve. DPP at 7. Her mother was on probation for domestic violence

against her now-deceased father at the start of this case and she told CPS

staff that she had no family support nearby, except for two aunts in

California for whom she had virtually no information. DPP at 4. In 2017,

the mother in this case suffered a traumatic brain injury when someone

attacked her with a baseball bat, causing memory loss and other health

issues. DPP at 7. At the time of the petition, she had cycled through bouts

of homelessness for years. DPP at 5-6. This mother, with a noted brain

injury and memory issues, testified that she did not believe she had

enrolled with the Tribe, RP, 88, 90. However, given she left home at age

twelve, she would not necessarily know if a family member had enrolled

her as a child. And at the time of the hearing, no party had records to

verify whether her impression was true or not. The father had no

connection with Tlingit & Haida or KCA and testified that he was not

aware of his own enrollment in the tribes he was connected to. RP, 66-67.

However, even with the mother’s testimony and the social

worker’s testimony, Id. at 88, and none from Tlingit & Haida or KCA, the

trial court ruled that there was not “reason to know” the children were or

7

may be Indian children. Despite this finding, which is legally required to

ensure notice under RCW 13.38.070, Tlingit & Haida received informal

notice alerting them to this case and intervened on KCA’s behalf after the

shelter care hearing. Giving the Tribe the opportunity to make its own

determination of the children’s tribal citizenship made all the difference

later in this case, as it will in many others. That original trial court finding,

however, lead to a lower standard of evidence at the shelter care hearing,

and did not require formal notice to be sent to the Tribes.

II. THE LOWER COURT DECISION RESOLVING DOUBTS ABOUT TRIBAL

CITIZENSHIP AGAINST TRIBES THWARTS THE PURPOSE OF ICWA AND

WICWA AND CLASHES WITH THE HOLDINGS OF CASES IN A MAJORITY

OF SISTER STATES.

A. WICWA’s Requirements Match the Sister States’ Holdings

Requiring a Low Evidentiary Bar for Noticing Tribes and are Not

Superseded by the Passage of the Federal Regulations

Adopting the lower court’s interpretation of “reason to know”

would limit the protections Washington requires in WICWA. RCW §§

13.38.010 et seq. In 2010, the Washington legislature required the

Washington State Racial Disproportionality Advisory Committee to

explore the root causes of, and make recommendations for, the

remediation of racial disproportionality in Washington state. The

committee found Indian children were being removed and persisted in the

state child welfare system at a rate higher than other groups of children in

8

the state. Wash. St. Racial Disproportionality Advisory Comm. Racial

Disproportionality in Washington State Report to the Legislature, at 15

(2010),

https://app.leg.wa.gov/ReportsToTheLegislature/Home/GetPDF?fileName

=Racial%20Disproportionality%20in%20WA%20State_1ab0b5ee-4ce0-

4bc7-9454-662e99f602b5.pdf.

As part of the remediation plan, the advisory committee

recommended that the state study efforts in other states to increase the

enforcement of ICWA and determine if those efforts helped reduce the

disproportionality. Id at 17. The state found that the other states’ efforts in

Iowa, Minnesota, Wisconsin, and California, which included passing state

ICWA laws, to reduce disproportionality had worked. Id. The intent of

WICWA was to create law, policies, and practices designed to ensure that

Indian children have the right to their relationship to their tribe. Id. This

Court specifically recognized the importance of the protections of

WICWA in the court system. In re T.A.W., 186 Wn.2d 828, 843 (2016).

Washington’s passage of WICWA reflects a commitment to

weighing in on the side of protecting potentially eligible children, as

opposed to excluding them. RCW 13.38.070. In many ways, WICWA

mirrors the language of ICWA, but there are important distinctions,

specifically regarding tribal membership and Indian children. WICWA

9

changes the reason to know standard by adding the phrase “or may be”

into its reason to know standard. RCW 13.38.070. In addition, while the

definition of “Indian child” and “Indian child’s tribe” (where the child is a

member or eligible for membership) are the same in both laws, 25 U.S.C.

1903(4), (5); RCW 13.38.040 (7),(9), WICWA defines “member” and

“membership” as “a determination by an Indian tribe that a person is a

member or eligible for membership in that Indian tribe.” RCW

13.38.040(12). And WICWA states that a written determination or

testimony by a tribe “attesting” that a child is a member of or eligible for

membership “shall be conclusive that the child is an Indian child.” RCW

13.38.040(12).

Outside of the WICWA definition of Indian child, the state law

never mentions the child’s need to be the biological child of a member.

RCW 13.38.070(3)(a). This is important because the lower court found the

federal regulations essentially require the parent to prove their own tribal

enrollment for a court to find reason to know an Indian child is involved in

the case—which is not a requirement for a tribal determination of tribal

membership. Because these RCW provisions together provide a higher

standard of protection than ICWA itself, the state must follow the law that

provides the higher protection. 25 U.S.C. 1921 and 25 CFR § 23.106(b).

10

In this case, the lower court was faced with conflicting information

regarding whether the children qualified as “Indian children.” Although

the parties believed that no child or parent was tribally enrolled (which

would not be determinative under WICWA regardless), the state’s own

social worker, as well as the father, testified it was possible the children

were eligible for tribal membership. RP at 11-12. In addition to the social

worker, the mother also testified that she and the children were eligible for

tribal membership with Tlingit & Haida. Id. at 88. Yet the lower court

resolved its doubts in favor of not applying ICWA and WICWA –

precisely the opposite of what these laws require.

B. The 2016 ICWA Regulations do not Change the Requirements or

the Language of ICWA’s “Reason to Know” Standard.

ICWA does not require the citizenship status of children to be

proven before providing protections. The “reason to know” presumption

that an identified American Indian or Alaska Native child qualifies as an

“Indian child” fits with the fact that ICWA’s heightened protections may

always be eased, but they cannot be afforded after-the-fact. Once

participants provide the court with enough information that a court has

reason to know a child is an Indian child, the court must treat the child as

an Indian child, and order legal notice be sent to the tribes. 25 C.F.R. §

23.107(b)(2); 25 U.S.C. 1912(a). In the case of a shelter care hearing, that

11

would be to ensure the evidentiary standard in 25 U.S.C. 1922 is met

before the court orders the child removed from their home and their

parents.

As described by the United States Department of Interior, all

parties share an interest in abiding by ICWA from the earliest stages of a

case, whenever it appears that it may apply. See 25 C.F.R. pt. 23; 81 Fed.

Reg. 38779, 38803 (June 14, 2016). Resolving any doubts in favor of

application is “intended to avoid the delays and duplication that would

result if a court moved forward with a child-custody proceeding (where

there is reason to know the child is an Indian child) without applying

ICWA, only to get late confirmation that a child is, in fact, an Indian

child.” Id. at 38803. This is primarily because ICWA provides at least two

serious remedies—the invalidation of proceedings under 25 U.S.C. 1914,

or the denial of jurisdiction due to an improper removal under 25 U.S.C.

1920.2 Additionally, “the early application of ICWA's requirements—

2 See In re Morris, 815 N.W.2d 62, 75 (Mich. 2012) (“However, if the trial court errs by

concluding that no notice is required and proceeds to place the child into foster care or

terminate parental rights, the purposes of ICWA are frustrated and the Indian child, the

parent or Indian custodian, or the Indian child's tribe may petition to have the proceedings invalidated pursuant to 25 U.S.C.A. § 1914.”); In re A.L.C. 8 Wash.App.2d 864, 877

(2019)(“Here, the Department has improperly maintained [the child’s] placement in out-

of-home care because the Department has failed to provide active efforts to prevent the

breakup of the Indian family. The appropriate remedy is the remedy prescribed by statute.

Thus, we remand to the juvenile court to either immediately return A.L.C. or make the

statutorily required finding that returning A.L.C. will subject her to substantial and

immediate danger or threat of such danger.”)

12

which are designed to keep children, when possible, with their parents,

family, or Tribal community—should benefit children regardless of

whether it turns out that they are Indian children.” 81 Fed. Reg. 38803.

The 2016 federal regulations slightly rewrote the 1979 Guidelines

for State Courts on the reason to know standard. Indian Child Custody

Proceedings. 44 Fed. Reg. 67584, 67586 (Nov. 26, 1979). The regulations

require the court to ask all of the participants if they “know or have reason

to know the child is an Indian child.” 25 C.F.R. §23.107(a). If there is

reason to know, but not sufficient evidence to determine the child is or is

not an Indian child, the court must confirm by way of a report that the

agency has used due diligence in determining the child’s Indian status, and

treat the child as an Indian child until determined otherwise on the record.

25 C.F.R. §§23.107(b)(1), (2). Finally, the regulations state the court has a

reason to know an Indian child is involved in the case after the initial

inquiry of the parties if,

(1) Any participant in the proceeding, officer of the court

involved in the proceeding, Indian Tribe, Indian organization,

or agency informs the court that the child is an Indian child;

(2) Any participant in the proceeding, officer of the court

involved in the proceeding, Indian Tribe, Indian organization,

or agency informs the court that it has discovered information

indicating that the child is an Indian child;

13

(3) The child who is the subject of the proceeding gives the

court reason to know he or she is an Indian child;

(4) The court is informed that the domicile or residence of the

child, the child's parent, or the child's Indian custodian is on a

reservation or in an Alaska Native village;

(5) The court is informed that the child is or has been a ward of a

Tribal court; or

(6) The court is informed that either parent or the child

possesses an identification card indicating membership in an

Indian Tribe.

25 C.F.R. §23.107(c)(emphasis added).

The 2016 ICWA Guidelines interpreting the regulations direct that

“[s]tate courts and agencies are encouraged to interpret these factors

expansively.” Bureau of Indian Affairs, Guidelines for Implementing the

Indian Child Welfare Act, B.1 (2016). Nothing indicates the regulations

provision should be read as repudiating or superseding the various states

case or statutory law that provides a low evidentiary bar to trigger the

“reason to know.” See In re Dependency of Colnar, 52 Wn.App. 37, 40-41

(1988)(discussing Washington’s reason to know standard prior to the

regulations and WICWA).

This “reason to know” presumption also takes into account the fact

that it is often impossible to have an instantaneous determination about a

child’s tribal citizenship at the start of emergency child protection

proceedings. Like many large tribes, Tlingit & Haida receives hundreds of

notices from various state agencies and courts every year, and each one

14

must be carefully considered and checked against membership rolls of

both Tlingit & Haida and the family’s local village. Per BIA reporting

data, in 2019 Tlingit & Haida responded to inquiries for 324 children.

Barbara Dude Aff. 1 (attached). Its staff of eight social workers intervened

on behalf of 235 children, about a third of whom live in Alaska, and a

third of whom live in Washington. Id.

Citizens of Tlingit & Haida commonly have dual citizenship with

other federally-recognized tribes throughout Southeast Alaska, and these

tribes may or may not have a compacting relationship with Tlingit &

Haida. Identifying the appropriate local village may require tracking back

three to five generations, on both sides of the family. This takes

considerable time, assuming all of the information in the notice is correct.

Tribes across the country must interpret fifty states’ notice forms, hope the

notice information is correct, and respond in a timely matter. See Adoptive

Couple v. Baby Girl, 731 S.E.2d 550, 632 (S.C. 2012), rev’d 570 U.S. 637,

133 S.Ct 2552, 186 L.Ed.2d 729 (2013)(the notice misspelled birth

father’s name and gave the wrong birthdate, so Cherokee Nation was

unable to verify the child was eligible for membership at Cherokee

Nation).

Therefore, Tlingit & Haida and KCA must rely on state courts to

provide initial ICWA protections to its children while the state agency

15

puts together legal notices with all of the necessary information to

determine tribal membership or eligibility for membership, mails it to the

tribes, and then affords the tribes the opportunity to conduct their own

research and determine which, if any, tribe has the most significant

contacts with the child. 25 U.S.C. §1903(5).

Congress considered this issue when passing ICWA and wrote:

“[t]he constitutional and plenary power of Congress over Indians, Indian

tribes and affairs cannot be made to hinge upon the cranking into

operation of a mechanical process under tribal law.” H.R. Rep. No. 95-

1386, at 17 (1978). In other words, the “reason to know” standard is much

lower than a “know” standard in order to ensure the child receives

ICWA’s protections before Tlingit & Haida or any tribe makes the final

determination of the membership or eligibility for membership of the

child.

C. Sister States Have a Low Evidentiary Burden to Trigger the

“Reason to Know” Standard Both Before and After the Regulations

were Issued.

In the leading case on ICWA, Mississippi Band of Choctaw

Indians v. Holyfield, 490 U.S. at 43-44, the Supreme Court was clear

about the uniform application of the law across the several states. Id. at 46.

The federal government reiterated this intent to encourage uniformity with

the publication of Federal Regulations governing ICWA in 2016. 25

16

C.F.R. pt. 23; 81 Fed. Reg. 38779 (June 14, 2016)(“This final rule

promotes the uniform application of Federal law designed to protect

Indian children, their parents, and Indian tribes.”). While it is unlikely all

fifty states will interpret ICWA identically, the original decision in this

case is an outlier in the majority of ICWA case law in this area, both

before and after the adoption of the regulations.

Because the determination of a child’s Indian status is so

important, most states have concluded that this “reason to know” standard

must be a very low evidentiary bar. See In re M.C.P., 571 A.2d at 633;

G.L. v. Dep’t of Children and Families, 80 So.3d 1065 (Fla. Dist. Ct. App.

2012); In re B.R., 97 Cal.Rptr.3d 890 (Cal. Ct. App. 2009).3 In 2012, for

example, the Michigan Supreme Court unanimously agreed that notice

was so important that any “sufficiently reliable information of virtually

any criteria on which tribal membership might be based suffices to trigger

the notice requirement.” In re Morris, 815 N.W.2d at 64 (2012) cited

approvingly in Michelle M. v. Dep’t of Child Safety, 401 P.3d 1013, 1017

(Ariz. Ct. App. 2017) and In re J.W.E., 419 P.3d 374, 378 (Okla. Civ.

3 But see In re Austin J., 261 Cal.Rptr.3d 297 (Cal. Ct. App. 2020), where the Second

District in California has taken the more stringent interpretation adopted by the court of

appeals here. In California, however, the state adopted the regulations as state law and

replaced a previous state law definition. Id. at 309.

17

App. 2018). And a few years prior to the Morris decision, the Colorado

Supreme Court wrestled with the same question and held,

Precisely what constitutes “reason to know” or “reason to

believe” in any particular set of circumstances will

necessarily evade meaningful description. As in other

contexts, reasonable grounds to believe must depend upon

the totality of the circumstances and include consideration

of not only the nature and specificity of available

information but also the credibility of the source of that

information and the basis of the source's knowledge.

B.H. v. People ex rel. X.H., 138 P.3d 299, 303 (Colo. 2006) (emphasis

added). In addition, a majority of courts interpreting the new regulations

have determined that “[t]he recently adopted regulations implementing the

Act also make clear that the ‘reason to know’ standard requires less than

actual proof that the child meets the statutory definition of ‘Indian child.’”

Geouge v. Traylor, 68 Va. App. 343, 365, 808 S.E.2d 541, 551 (2017); see

also Matter of J.W.E., 419 P.3d at 378-380 (Okla. Civ. App. 2018); Matter

of L.A.G., 429 P.3d 629, 632–33 (Mont. 2018); Matter of B.Y., 432 P.3d

129, 132 (Mont. 2018); State ex rel. Children, Youth & Families Dep’t v.

Tanisha G. 451 P.3d 86, 88 (N.M. Ct. App. 2019).

In its attempt to read the regulations narrowly, the state points to a

couple of cases that remain minority holdings. The first is an unpublished

case in Texas, even though more recent, published, cases from Texas have

18

not adopted that same reasoning. See Interest of M.R. __S.W.3d__, 2020

WL 500783, *3 (Tex. Ct. App. 2020).

In the second, an Alabama Court of Appeals case, the grandmother

of the parent in that case advised the court that the family may be related

to an unnamed Ojibwe tribe. In holding this was not enough information

to find a reason to know there was an Indian child involved, the court

quotes the Geouge decision extensively, and ultimately agrees that “[t]hus,

all that is required for the [ICWA]'s notice provisions to apply is for a

party or counsel to assert in good faith a belief that the child ‘is an “Indian

child.”” T.W. v. Shelby Cty. Dep't of Human Res., No. 2180005, 2019 WL

1970066, at *8 (Ala. Civ. App. May 3, 2019). The Geouge court

ultimately held that the Mother’s claim that ICWA “might apply” because

the biological father of the child might be Cherokee, and provided no

additional information, was not high enough to clear the “low bar” of

“assert[ing] in good faith a belief that the child ‘is an ‘Indian child’” 808

S.E.2d at 553. Even assuming this standard is correct, in Washington a

party or parent would only have to assert in good faith that the child may

be an Indian child, as the social worker did here. RCW 13.30.050.

Finally, in In re J.W.E. the mother testified she was enrolled at

Cheyenne Arapaho. 419 P.3d at 375. Her children were only eligible to be

enrolled at Choctaw. Id. At that point, the children did not qualify as

19

biological children of an enrolled Choctaw member or enrollable children

of a Cheyenne Arapaho member. Mother’s testimony was that she was

“becoming an established member” in the Choctaw Tribe. Id. Under the

department’s argument, the trial court’s holding that it did not have reason

to know the children were Indian children with that testimony would have

been the correct holding. And yet the Oklahoma Civil Court of Appeals

reversed, holding the trial court did have reason to know at that point. Id.

at 379.

Therefore, in Arizona, Colorado, Florida, Michigan, Montana,

New Mexico, Oklahoma, Vermont, most districts of California, and in

Washington before the lower court’s decision here, the testimony

proffered by the mother, father, and social worker in this case would have

been considered sufficient to create “reason to know.” This would have

ensured Tlingit & Haida and the child’s local tribal village received the

legally required notice of the on-going proceedings and the children would

have received heightened §1922 protections at the shelter care hearing.

Under the lower court’s decision, these same Tlingit & Haida children in

Washington’s courts would not receive those protections.

20

CONCLUSION

Because the court had reason to know the children were or may be

Indian children at the shelter care hearing, and because the Court’s

decision would strip Tlingit & Haida children, along with all other Native

children, of the important protections of ICWA and WICWA at one of the

most critical points of a child protection proceeding, the Tribe respectfully

asks this Court to reverse the Court of Appeals decision in this matter.

Respectfully submitted,

___________________________

Ronald J. Whitener

Center for Indigenous Research

and Justice

5033 Harrison Avenue NW

Olympia, Washington 98502

(425) 242-5888

/s/Kathryn E. Fort

Kathryn E. Fort

Michigan State University

College of Law

Indian Law Clinic

648 N. Shaw Lane, Ste. 415K

East Lansing, Michigan 48824

(517) 432-6992

/s/Madeline Soboleff Levy

Madeline Soboleff Levy

Central Council of the Tlingit

and Haida Indian Tribes of

Alaska

9097 Glacier Highway

Juneau, AK 99801

1

Center of Indigenous Research and Justice

CERTIFICATE OF SERVICE

I certify that on the date listed below I served a copy of this document on

all parties or their counsel of record on the date below as follows:

Kelly Taylor

Washington State Attorney General’s Office

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – kellyt1@atg.wa.gov;

SHSSeaEF@atg.wa.gov

Ariell Ikeda

Washington State Attorney General’s Office

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – arielli@atg.wa.gov

Peter Gonick

Washington State Attorney General’s Office

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – peterg@atg.wa.gov

Social & Health Services

Washington State Attorney General’s Office

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – shsseaef@atg.wa.gov

Solicitor General Division

Washington State Attorney General’s Office

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – sgoolyef@atg.wa.gov

Kathleen Carney Martin

King County

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System –

kathleen.martin@kingcounty.gov

2

CASA of King County

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – casa.group@kingcounty.gov

Lauren Johansen

KCDPD – SCRAPD

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – lajohans@kingcounty.gov

Tara Urs

KCDPD – SCRAPD

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – tara.urs@kingcounty.gov

La Rond Baker

KCDPD

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – lbaker@kingcounty.gov

Sarracina Littlebird

Northwest Justice Project

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☒ COA Electronic Filing System – cina.littlebird@nwjustice.org

Jennifer Yogi

Northwest Justice Project

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – jennifery@nwjustice.org

Brooke Pinkham

Seattle University Law School

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – pinkhamb@seattleu.edu

Robert Chang

Seattle University Law School

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – changro@seattleu.edu

3

Hilary Behrman

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – hilary@defensenet.org

Alexandria Hohman

☐ US Mail Postage Prepaid

☒ COA Electronic Filing System – ali@defensenet.org

Diana Breaux

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☒ COA Electronic Filing System – dianab@defensenet.org

Colleen Shea-Brown

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☒ COA Electronic Filing System – colleenlcyc@gmail.com

FILED

SUPREME COURT

STATE OF WASHINGTON

512812020 2:40 PM

BY SUSAN L. CARLSON

CLERK 1N Tttti SUPREME COURT OF THE STATE OF WASHINGTON

IN RE THE DEPENDENCY OF ZJ.G. AND M.G., Minors,

WASHINGTON STATE DEPARTMENT OF CHILDREN, YOUTH, AND FAMILIES,

Respondent,

v.

SCOIT JAMES G~ER,

Appellant.

AFFIDAVIT OF BARBARA DUDE IN SUPPORT OF AMICUS BRIEF

I, Barbara Dude, do swear or affirm that the following facts are true to the best of my knowledge:

1) I am the Family Services Administrator for the Tribal Family &. Youth Services (TFYS)

Department at Central Council of the Tlingit and Haida Indian Tribes of Alaska (Tlingit &

Haida).

2) In my role, I supervise om ICWA staff in Juneau headquarters, including our three ICWA

caseworkers and our intake specialist.

3) Part of my job duties include reporting quarterly data on ICWA inquiries and open cases

to the Bmeau of Indian Affairs.

4) Per om Department's BIA reporting data that I reviewed in preparation for the Amicus

Brief, Tlingit &. Haida responded to inquiries for 324 children across the United States in

2019.

5) In 2019, our total Southeast staff of eight case workers intervened on behalf of 235 children, about a third of whom live in Alaska, and a third of whom live in Washington.

6) As a matter of practice, Tlingit & Haida strives to intervene in ICWA cases as early as

possible, ideally from the initial hearing.

7) F.arly intervention is critical in demonstrating support for the family, helping the

department identify cultmally-appropriate services to increase the chances of reunification,

assisting the department in meeting their obligations to identify relative placements for the

children, and ensuring that tribal children have access to all of the resources available to

them.

IN RE DEPENDENCY OF ZJ.G •• AND M.G •• MINORS Affidavit of Barbara Dude, Tlingit & Haida

Page 1 of2

Further your affiant sayeth naught.

DATE: 5 . .';){o~ i{O")() ~ Family Services Administrator Tribal Family & Youth Services (TFYS) Tlingit and Haida Indian Tribes of Alaska 320 W Willoughby Ave., Suite 300 Juneau, Alaska 99801 Direct: 907.463.7148 • Fax: 907.885.0032 bdude@ccthita-nsn.gov

Subscribed and sworn to·or affinned before me at Juneau, Alaska, on 5 / l fo / 2Dl 0

~?--(~ Clerk of Court, Notary Public, or other person authorized to administer~-My commission expires: ~ Z 1 / Z o Z .5

IN RE DEPENDENCY OF ZJ.G., A.ND M.G., MINORS Affidavit of Barbara Dude, Tlingit & Haida

Page 2 of2

CENTER OF INDIGENOUS RESEARCH AND JUSTIC

May 28, 2020 - 2:40 PM

Transmittal Information

Filed with Court: Supreme CourtAppellate Court Case Number: 98003-9Appellate Court Case Title: In the Matter of the Dependency of Z.J.G. and M.E.J.G., minor children.

The following documents have been uploaded:

980039_Affidavit_Declaration_20200528143844SC030581_3024.pdf This File Contains: Affidavit/Declaration - Other The Original File Name was Amicus_CCTH_DUDE AFFIDAVIT IN SUPPORT OF AMICUS.pdf980039_Briefs_20200528143844SC030581_4051.pdf This File Contains: Briefs - Amicus Curiae The Original File Name was WASC_GreerAmicus_Final2_052820.pdf980039_Motion_20200528143844SC030581_3766.pdf This File Contains: Motion 1 - Amicus Curiae Brief The Original File Name was SC Motion to File Amicus_052820.pdf

A copy of the uploaded files will be sent to:

Peter.Gonick@atg.wa.govali@defensenet.orgariell.ikeda@atg.wa.govbrakes@gsblaw.comcasa.group@kingcounty.govchangro@seattleu.educina.littlebird@nwjustice.orgcolleenlcyc@gmail.comdianab@summitlaw.comfort@law.msu.eduhillary@defensenet.orgjennifery@nwjustice.orgkathleen.martin@kingcounty.govkellyt1@atg.wa.govlajohans@kingcounty.govlbaker@kingcounty.govlitdocket@foster.commsobolefflevy@ccthita-nsn.govpats@summitlaw.competerg@atg.wa.govpinkhamb@seattleu.eduscrap.seattle.dependency@kingcounty.govsgoolyef@atg.wa.govshsseaef@atg.wa.govtara.urs@kingcounty.govtiffanie.turner@kingcounty.gov

Comments:

Sender Name: Ronald Whitener - Email: ronw@cirj.org Address: 5033 HARRISON AVE NW OLYMPIA, WA, 98502-5083 Phone: 425-242-5888

Note: The Filing Id is 20200528143844SC030581

CENTER OF INDIGENOUS RESEARCH AND JUSTIC

May 28, 2020 - 2:40 PM

Transmittal Information

Filed with Court: Supreme CourtAppellate Court Case Number: 98003-9Appellate Court Case Title: In the Matter of the Dependency of Z.J.G. and M.E.J.G., minor children.

The following documents have been uploaded:

980039_Affidavit_Declaration_20200528143844SC030581_3024.pdf This File Contains: Affidavit/Declaration - Other The Original File Name was Amicus_CCTH_DUDE AFFIDAVIT IN SUPPORT OF AMICUS.pdf980039_Briefs_20200528143844SC030581_4051.pdf This File Contains: Briefs - Amicus Curiae The Original File Name was WASC_GreerAmicus_Final2_052820.pdf980039_Motion_20200528143844SC030581_3766.pdf This File Contains: Motion 1 - Amicus Curiae Brief The Original File Name was SC Motion to File Amicus_052820.pdf

A copy of the uploaded files will be sent to:

Peter.Gonick@atg.wa.govali@defensenet.orgariell.ikeda@atg.wa.govbrakes@gsblaw.comcasa.group@kingcounty.govchangro@seattleu.educina.littlebird@nwjustice.orgcolleenlcyc@gmail.comdianab@summitlaw.comfort@law.msu.eduhillary@defensenet.orgjennifery@nwjustice.orgkathleen.martin@kingcounty.govkellyt1@atg.wa.govlajohans@kingcounty.govlbaker@kingcounty.govlitdocket@foster.commsobolefflevy@ccthita-nsn.govpats@summitlaw.competerg@atg.wa.govpinkhamb@seattleu.eduscrap.seattle.dependency@kingcounty.govsgoolyef@atg.wa.govshsseaef@atg.wa.govtara.urs@kingcounty.govtiffanie.turner@kingcounty.gov

•

•

•

• • • • • • • • • • • • • • • • • • • • • • • • • •

Comments:

Sender Name: Ronald Whitener - Email: ronw@cirj.org Address: 5033 HARRISON AVE NW OLYMPIA, WA, 98502-5083 Phone: 425-242-5888

Note: The Filing Id is 20200528143844SC030581